The NLRB Versus the D.C. Circuit

The Wall Street Journal has an editorial about what looks like the Obama administration's decision basically to disregard a D.C. Circuit opinion that the Senate wasn't actually in "recess" when President Obama used a "recess appointment" to name members to the National Labor Relations Board.

It's a great constitutional battle in that it involves all three co-equal branches of government — the legislative branch, i.e., the Senate, which stayed in session to prevent recess appointments; the executive branch, i.e., President Obama, who went ahead and made the appointments anyway; and the Article III Judiciary, i.e., the D.C. Circuit, which ruled the recess appointments illegal. It also resonates because of various other ways that Mr. Obama has chosen to use his discretion to disregard other laws he would prefer to be changed, such as immigration laws.

I'm all for the rule of law, but conservatives expressing outrage at Mr. Obama's move may want to consider that some day there will be a Republican president who wants to appoint people that Senate Democrats want to block. If the laws need to be clarified on recess appointments, or on the definition of a recess, so be it. But in the understandable effort to limit the damage that can be done by President Obama, the Republicans would be wise to avoid sapping the strength of the executive. The last thing a President Rubio or Jindal is going to want is Senator Warren or Senator Sanders or a bunch of Obama appointees to the judiciary telling him he can't do what he wants. You can be conservative and for limited, constitutional government and still favor a strong executive. Just ask President Reagan, or Vice President Cheney.

by Editor | Jan 29, 2013 at 4:57 pmreceive the latest by email: subscribe to the free futureofcapitalism.com mailing list